Is the concept of (human) rights a modern conceit, as Alasdair MacIntyre thinks? To answer that question, it helps to look at the premodern roots of the concept of rights in some detail. The French legal historian Michel Villey has probably done more than any other to help us understand the historicity of the concept of rights – to recognize that the idea of a right as we understand it today is not a human universal, but has a specific history. (Unfortunately, few if any of Villey’s works have been translated into English; even the Wikipedia link above is French only.) Something like Villey’s work probably underlies MacIntyre’s understanding of the history of rights. Still, if we examine the similarly pioneering work of Cornell historian Brian Tierney, we will see that Villey’s claims are at least somewhat overstated, and MacIntyre’s even more so.

The etymology of the English word “right(s)” goes back very far – it is shared not only with German and Dutch Recht but with the word ṛta from the Sanskrit Vedas, denoting the cosmic order underlying the world. But what’s most important in the history of “rights” and related words is not the words themselves but the underlying concept, the one that comes to be expressed in modern European languages as droit, derecho, Recht, rights. That concept begins as a word which is not etymologically related to the modern European words, but which those words all translate and which is the root of modern European thinking about them: ius.

The Latin language gave us the word ius or jus – the root of our “justice”, “judge”, “jury” – and it is this word that infuses modern Western conceptions of rights. It is those modern Western conceptions, in turn, that have been given neologistic translations into other languages (like the Japanese jinken 人権). It is to Latin-speakers, for better or for worse, that we now (Western and non-Western) owe the modern concept of a right.

And the history of the Latin concept of ius is a very interesting one, for in many ways it did not always mean “a right” in the sense we understand it now. Ius in early modern Latin, like French droit and German Recht, meant “law” as well as “a right”. This is no coincidence, for a right is always a condition of some sort of law: human law, divine law, natural law, moral law. But to the Romans of the Roman Empire, ius did not have the meaning of “a right” that it would have by the time of John Locke or even Hugo Grotius.

This point is what we may miss if we take the idea of rights as universal. While Leif Wenar’s Stanford Encyclopedia entry on rights is sensitive overall to the historical detail, it’s easy to be misled by a passage of Wenar’s like this one:

Even the most primitive social order must include rules specifying that certain individuals or groups have special permission to perform certain actions. Moreover, even the most rudimentary human communities must have rules specifying that some are entitled to tell others what they must do. Such rules ascribe rights. The genesis of the concept of a right was simultaneous with reflective awareness of certain social norms.

The question is what status we grant to such rules. For us now, the idea of a right (typically modified by an adjective like “human”, “civil” or “universal”) is normative as well as descriptive: if a government does not in fact allow its citizens the freedom of speech, we typically think of that government as acting poorly because human beings have the right to freedom of speech, irrespective of whether their government recognizes that right. And it is this normative concept of rights that is quite alien to most societies that have existed in history.

Michel Villey looks in detail at how the concept of “rights” emerged in the West – how the Latin ius came slowly to mean “a right”, which it had not meant in ancient Rome. He agrees that the Romans did have rules specifying some people had the permission to do some things and tell others to do other things (a nobleman’s control over his householding, for example). But the Romans, he says, never referred to such permissions or abilities as ius, the term that early modern thinkers would use for “rights” and that came to be translated with the words for “rights” in modern European languages. Rather, they were powers – referred to instead with words like potestas, dominium, imperium.

Why does that point matter? Because ius had a moral significance, and powers did not. The powers were “extra-juridical facts”, facts of life that simply happened to be the case; there was nothing about them that should be the case. Rather, when the Romans talked about ius, as something worth protecting and strengthening, it had to do – like ṛta and its descendant dharma – with duties rather than powers.

This Roman conception is something quite different from our conception of rights today: we not only think of a right as a limited realm of activity in which we are entitled to do whatever we want, we think there is something morally wrong with restricting our activity in that realm. “Rights” for us go well beyond the matters of fact of what people are permitted to do. Even in our personal relationships we say things like “I have a right to feel upset”. No institution’s law recognizes such a right. While we nearly always have an ability, a power to feel upset, we have at least as much of an ability to wiggle our toes, and we would rarely insist to an intimate that we have a right to wiggle our toes. A right in our sense is a moral power, an ability we are morally entitled to have. That, according to Villey, is what the powers recognized by the Romans were not. We miss that point because of the change the centuries in the use of ius: a word which did have a moral significance to the Romans, but did not mean a power.

The Roman legal thinker Ulpian is sometimes credited as a “pioneer of human rights” for his explorations of what it means to have a ius. But his legal and moral concept of ius is not our “right”. Justice (iustitia), for Ulpian, is “the constant and perpetual will to render to everyone his ius” (ius suum cuique tribuendi). But this ius is not a right as we understand it; rather, it is a fair share, a “due”. It is much closer to Aristotle’s formulation of particular justice, as giving everyone what they deserve. So for Ulpian the ius civitatis, the ius of a citizen, includes the obligation to perform military service. And in perhaps the most vivid example, the ius of a parricide is to be tied up in a sack of vipers and thrown into the river. These are not permissions, they are obligations. If they are “rights”, they are very eccentric ones. But to the extent that there are “rights” before medieval Europe, Villey argues, they are of this kind, where permissions and obligations are not separated from each other but part of the same legal complex, with the obligations at the fore.

To say that rights are universal, then, requires describing many people’s social practices and beliefs in a way that is quite alien to their own practices and beliefs – much like describing the Vedas as “Hindu” texts, or for that matter identifying the Hebrew Bible as a Christian text. You can do it without being entirely wrong, but doing so is likely to mislead more than it clarifies.

As I understand it, Villey and Tierney agree on the story of rights to this point. But if we have established that Western civilization did not have a concept of rights in ancient Rome, it is even clearer that we have one now. So how did we get from there to here? I will take up that question next time.

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4 thoughts on “The history of rights (I)”

Thank you for this reference to Villey, w/ whose work I was not familiar. I did find this (English) bit of secondary literature, which people might be interested in:The Emergence of the Modern Concept of A Right in America: the contribution of Michel Villey
Law and jurisprudence are too often not really read by philosophers, unless they specialize. To my mind this is as serious an oversight as neglecting literature or religion. (Which is not to say I am not guilty of it…) I’m looking forward to the continuation of this series.

Yes, I think there’s some decent secondary literature in English on Villey; that one works well. Tierney also gives you an idea of what’s going on in Villey, though you don’t get quite as much of a sense of how fascinating Villey is because he’s just picking Villey apart.

Regarding law and jurisprudence: yes, I think that’s right. It’s seemed to me for a while that the role of legal thinkers like Grotius in developing modern moral (let alone political) philosophy has been deeply underestimated. And perhaps that’s not just a Western thing, either. In India, dharmaśāstra winds up looking like a legal text with surprisingly little connection to the literature we could more easily class as philosophical, despite their professed subject matter (dharma) being proclaimed to be the same. The same could be said of Buddhist vinaya (monastic codes).

Jurisprudence and philosopy are certainly linked. For example, there is a good book published about ten years ago titled “The Metaphysical Club” detailing the relationships and careers of Charles Pierce, William James and Oliver Wendell Holmes, Jr.

Holmes was known for a judicial philosophy that rejected a notion of law as being moral or just. Instead, the task of lawyers and judges is to make the law more predictable. Related to this is the articulation of the modern notion of freedom of speech — the ideas that, in a democracy, ideas compete in a “marketplace” and can become law. There is no sense that the rule of the majority is intrinsically moral or right — and freedom of speech allows ideas to compete for dominance.

Sure, I don’t think anyone would dispute that philosophy in general has a strong effect on jurisprudence (at least in the Western world). What I think gets neglected is the influence in the other direction. Villey and Tierney have really helped kickstart my interest in the way that thinking about law affected more general thinking about not only political but also moral philosophy.

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